Abstract:
The shadow of state secrets casts itself longer than previously
acknowledged. Between 2001 and 2009 the government asserted state
secrets in more than 100 cases, while in scores more litigants appealed
to the doctrine in anticipation of government intervention.

Contractor
cases ranged from breach of contract, patent disputes, and trade
secrets, to fraud and employment termination. Wrongful death, personal
injury, and negligence suits kept pace, extending beyond product
liability to include infrastructure and services, as well as conduct of
war. In excess of fifty telecommunications suits linked to the NSA
warrantless wiretapping program emerged 2006-2009, with the government
acting, variously, as plaintiff, intervenor, and defendant. In cases
stemming from allegations of Fourth and Fifth Amendment violations,
torture, environmental degradation, breach of espionage contracts, and
defamation, the government defended both the suit and state secrets
assertions. The doctrine also played a role in the criminal context.

Collectively,
these cases underscore the importance of looking more carefully at how
the doctrine actually works. They also suggest the emergence of a new
form of “greymail”: companies embedded in the state may threaten to air
legally- or politically-damaging information should the government
refuse to support their state secrets assertion. And they challenge the
dominant paradigm, which tends to cabin state secrets as an evidentiary
rule within executive privilege, suggesting in contrast that it has
evolved to become a powerful litigation tool, wielded by both private
and public actors.